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We do not feel that these findings were erroneous. It appears that appellee, in the fall of 1926, or in January, 1927, began to consider the question of dealing in ammunition of a new type which would not foul the bore of the guns in which used, and that it took up the subject with the Western Cartridge Company, which furnished appellee's ammunition supplies; that in January, 1927, after considering different names for trade-mark use, "Sta-Klean" was decided upon; that on January 21, 1927, the supervisor of appellee's sporting goods department wrote the advertising department to take steps to register the mark, and that these steps were taken; that in February, 1927, drawings were made of the design for the mark, followed by photostatic copies of the drawings, and that plans were under way to have the goods listed, under the Sta-Klean mark or label, in the catalogue which was to be issued July 1, 1927, which plans were duly consummated.

It further appears that one Emil O. Strauss, a commercial artist in the employ of an engraving company which did work for both parties to this suit, learned in some way-we do not regard it as material just how-of appellee's ammunition to which the Sta-Klean mark was applied, or was to be applied, and under date of February 28, 1927, addressed a letter, which is in evidence, to the company placing an order for "two hundred rounds of Sta-Klean ammunítion for a .22 short caliber rifle," and stated in his letter:

I am enclosing 70 cents. I do not know whether this is the right price, as I have no catalogue to order from.

The order was filled, the merchandise being shipped by express. The receipt of the Express Company is in the record, and along with it a statement showing that the price was 60 cents, and that there was due the purchaser a refund of 10 cents.

We see no reason in the face of the testimony and the documentary evidence filed to question the fact that the goods shipped were the goods ordered. The witness states that he received the goods in boxes labeled with a photostatic copy of the Sta-Klean design or mark, and that he used the goods, except perhaps some that were misplaced, for the purposes for which ordered.

Geo. E. Engelhard, an employee of appellee, testified that he personally looked after the filling of the Strauss order and attached the photostats to the packages. It is not deemed necessary to go into any elaborate review of the evidence in the case. Unless both Strauss and Engelhard are to be wholly discredited and their testimony, as well as the documentary evidence, disregarded, we think the fact of the sale to Strauss is abundantly established.

Appellant insists, however, that, even if the sale to Strauss be conceded, it was not a sale of the type of ammunition upon which it was proposed to use the mark; that it was some other type which appellee had in stock at the time and upon which it placed the photostats. Appellee insists that the evidence shows that it was of the same type and that, even if it were not, it would make no difference in law. Upon the latter contention of appellee we do not deem it necessary to pass, since we agree with the former. Engelhard's testimony, taken as a whole, is quite positive to the effect that the sale to Strauss consisted of an ammunition which had the noncorrosive powder of the type covered by appellee's Sta-Klean mark.

Without lengthening this opinion unduly by a minute analysis of the testimony, it is sufficient to say that, in our opinion, it establishes the sale to Strauss as being a bona fide sale of the type of the goods for use upon which the registration of appellee is sought, and that the packages contained the mark, applied in a manner which meets the requirements of the Trade-Mark Registration Act as to fixing appellee's title thereto.

[1] The sale to Strauss was an intrastate transaction. This was sufficient when coupled with the further subsequent uses shown to vest title in appellee or give to it the ownership of the mark, but registration could not be predicated upon this alone. Macauley v. Malt-Diatase Co., 55 App. D. C. 277, 338 O. G. 4. In order to be entitled to register, the owner of a mark, by the terms of the statute, must have used same in interstate commerce.

Such interstate use by appellee is, we think, established by a sale and shipment to Dr. Maurice A. Marr, of Michigan City, Ind. Doctor Marr's order for "100 6K216 Staklean cartridges" was given in writing under date of June 27, 1927, accompanied by a check for 30 cents, and the goods ordered were received by him a few days thereafter, being shipped by express on June 28, 1927. Doctor Marr's testimony as to this transaction is supported by ample documentary evidence. Indeed, the occurrence of the transaction is not questioned by appellant, but it is insisted that it was not one which meets the Trade-Mark Registration Act requirement. It is pointed out that Doctor Marr, in fact, made the order at the solicitation of a member of the Sears, Roebuck and Company concern; that he did not use the cartridges, and the contention is that the whole transaction was brought about in an effort to meet the interstate commerce requirement of the registration law, and appellant cites the case of Phillips v. Hudnut et al., 273 O. G. 629; 49 App. D. C. 247; 263 Fed. 643. It does not seem to us that the instant case is on all fours with the

last named case. The facts are different. There is no question of there having been a sale in the instant case. Doctor Marr ordered the cartridges and paid the regular price for them with his own money. It is not material how he used them, or whether he used them at all. It may be that the transaction was one brought about by appellee's desire to meet the requirements of the law but this does not destroy its rights, if, in fact, it did meet these requirements.

The transaction with Doctor Marr, on the part of appellee, is, at least, in quite as favorable a situation legally as is that of appellant with Anderson and Cameron, wherein appellant, in response to an order for one kind of cartridges, substituted and shipped to Anderson others bearing the "Staclean" label. The circumstances, we think, strongly indicate that the transaction of appellant was in order to make an interstate shipment of goods bearing its proposed mark.

It is upon this shipment that appellant relies to establish its date of May 11, 1927. The proof fails definitely to establish that its goods shipped were, in fact, accepted so as to make out a completed interstate commerce transaction, but under our view of the case we need not pass upon that question.

[2] It is quite evident from the record that both parties to this proceeding, who are engaged in the mail order business upon a large scale, began to plan dealing in the type of ammunition containing a new kind of non-corrosive powder, shortly after that type became

known, and by a coincidence, of which there is no explanation in the record, both chose practically the same word for a trade-mark. There is no allegation or intimation of fraud or deceit and counsel for each party appears to be of the opinion that neither principal knew what the other was planning relative to the trade-mark until the appearance of the respective catalogues, about July 1, 1927.

Upon the record in the case we think the decision of the Commissioner of Patents was without error and same is affirmed.

Affirmed.

[U. S. Court of Customs and Patent Appeals]

IN RE DANN

No. 2,706. Decided May 25, 1931

412 O. G. 282; 49 F. (2d) 957

PATENTABILITY-PROTECTIVE MEANS FOR ELECTRICAL APPARATUS.

Claims for a protective means for electrical apparatus such as transformers Held unpatentable over the prior art.

APPEAL from the Patent Office. Affirmed.

Mr. Wesley G. Carr and Mr. Franklin E. Hardy for Dann.

Mr. T. A. Hostetler and Mr. Howard S. Miller for the Commissioner of Patents.

GARRETT, J.:

The Board of Appeals of the United States Patent Office affirmed a decision of the Examiner rejecting several claims of appellant, Dann, contained in an application for patent, filed December 23, 1922, for improvements in protective means for electrical apparatus such as transformers. From the decision of the Board appellant has prosecuted an appeal to this court.

Originally, nine claims were involved in the appeal. At the time of the argument of the case, on April 7, 1931, there was_pending before us a petition for rehearing in the case of In re Eschholz, appeal No. 2,583, which case had previously been decided by us adversely to appellant therein. The petition for rehearing was later granted and the Eschholz case is being again decided concurrently herewith, our former decision being modified and certain claims being allowed. (408 O. G. 590, 46 F. (2d) 704 and 49 F. (2d) 956.) Upon comparing the Eschholz case and the instant case it was found that they contained common subject matter in the claims, which, had they been regarded as patentable by the tribunals of the Patent Office would have necessitated an interference or other appropriate proceeding there.

It developed that both the Eschholz and Dann applications have become the property of a common assignee, and the attorney for Dann, under these circumstances, on May 11, 1931, filed a memorandum in writing, which is made a part of the record in this case, withdrawing all the claims thought to conflict with the Eschholz claims. The claims withdrawn are Nos. 4, 5, 6, 7, 8, 11, and 12. So, there remain to be considered by us only Nos. 9 and 10, which read as follows:

9. An expansion device comprising a chamber having an opening for communication with an external container, means constituting a liquid seal for excluding air from said chamber, a container for a chemical substance in said chamber that is removable therefrom, and a deoxidizing material in said lastnamed container.

10. An expansion device comprising a chamber having an opening for communication with an external container, means constituting a liquid seal for excluding air from said chamber, and a container for a chemical substance in said chamber, said chamber having an opening through which said container may be removed, and a removable cover member for said opening.

The references cited as the case originally came before us, containing the nine claims, were: Hadley, 1,013,767, January 2, 1912; Hundt, 1,100,736, June 23, 1914; Green, 1,326,049, December 23, 1919.

In the memorandum withdrawing the stated claims, counsel for appellant, who was also counsel for Eschholz, stated:

The Eschholz invention is primary in character, the Dann invention being merely a specific mechanical arrangement for utilizing the Eschholz invention. The Dann improvement consisted in placing the deoxidizing element of the Eschholz invention in an outside chamber 9, connected to the gas space in the transformer tank by a pipe 8, and providing a door 12 by which the inside of the chamber 9 for containing the deoxidizer, may be readily accessible for observation and replenishment of the deoxidizing element. The chamber 9 in the Dann arrangement is brought down to a point where it can be reached and observed without getting on top of the transformer tank, as required in the embodiment shown in the Eschholz case.

No patent can be issued to Dann covering anything patented in the Eschholz case. This was conceded in oral argument, and the foregoing withdrawal of appellant's broad claims reduces the Dann application to one relating only to a modified mechanical arrangement for applying the Eschholz primary invention.

It does not seem to us that in view of the references, there is anything inventive in arranging a chamber on the outside for containing the deoxidizing agent or in putting a door therein for rendering the deoxidizer readily accessible for observation and replenishment, nor is it patentable, after placing the chamber on the outside, to bring it "down to a point where it can be reached and observed without getting on top of the transformer tank." That is a matter of convenience which it seems would readily occur to one skilled in avoiding climbing ladders. Neither does it appear inventive to render the carrier for the deoxidizing substance removable, nor to provide an opening and removable cover therefor for convenience in removing the deoxidizing material. Since this material must be changed at times an opening for taking it out is a manifest necessity. The liquid seal is old in the art and there is nothing patentable in applying it to the separate deoxidizing chamber.

The decision of the Board of Appeals is affirmed.

Affirmed.

[U. S. Court of Customs and Patent Appeals]

IN RE SLEPIAN

No. 2,727. Decided May 25, 1931

412 O. G. 283; 49 F. (2d) 835

1. PATENTABILITY-DOUBLE PATENTING.

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Under the doctrine of the Isherwood case, 46 App. D. C. 507, 1917 C. D. 226, it is clear, we think, that appellant is not entitled to claims for a

second form of his invention unless such claims to the second form involve an inventive difference over the claims already taken out in the patent for the first form.'"

2. SAME THERMIONIC AMPLIFYING DEVICE.

Certain claims for thermionic amplifying devices Held unpatentable over the prior art.

APPEAL from the Patent Office. Affirmed.

Mr. Wesley G. Carr and Mr. Frederick W. Lyle for Slepian. Mr. T. A. Hostetler and Mr Howard S. Miller for the Commissioner of Patents.

GARRETT, J.:

This proceeding involves five claims, numbers 22 to 26, inclusive, contained in an application filed by Slepian January 5, 1921, for alleged new and useful improvements in thermionic amplifying devices. Seven claims of the application were allowed by the United States Patent Office. Those at issue were rejected by the Examiner, whose decision was affirmed by the Board of Appeals of the United States Patent Office, and from the decision of the latter the appeal comes to this court.

The claims are divisible into two classes, numbers 22 and 23 comprising one group, and numbers 24, 25, and 26 the other. Numbers 22 and 24 are quoted as representative of these respective groups:

22. In combination with a source of electro-motive force and a work circuit adapted to utilize a relatively large current, a pair of electrodes connected in said work circuit, a source capable of emanating electrons at a rate which is small relative to that necessary to supply said current, means to cause electrons from said source to impinge upon that portion of one of said electrodes which faces said other electrode, and means to vary the number of said electrons impinging upon said one electrode per second.

24. In combination with an output circuit having a pair of electrodes connected thereto, a source of light, a photo-electric substance, means to cause electrons emanating from said substance to impinge upon one of said electrodes, and means to vary the number of said electrons so impinging per second.

The references are: Langmuir, 1,282,439, October 22, 1918; Slepian, 1,450,265, April 3, 1923.

From the decision of the Board of Appeals we quote the following description of the device and its operation:

The claims are drawn to a work circuit including a thermionic amplifier. In the form of the device shown in the drawings the amplifier is provided with a cathode, an anode and a control grid and in addition to these three electrodes it is provided with a potassium electrode which constitutes the source of primary electrons. The latter electrode is photo-electrically active and when subjected to the rays of a lamp emits primary electrons which travel toward the anode. Due to the presence of a magnetic field, however, they are diverted and strike that face of the cathode which is located toward the anode. The small number of high velocity primary electrons striking the cathode causes the emission therefrom of a large number of secondary electrons which pass to the anode. This large number of electrons permits a relatively high current value to flow through the output circuit connected to the tube.

It was the view of the tribunals of the Patent Office that claims 22 and 23 definded nothing patentable over the subject matter of certain claims of appellant's patent of April 3, 1923, supra. Both tribunals pointed out that the only feature distinguishing the claims is that those of the application, to quote the Examiner, "recite means to vary the number of electrons emitted from the source of primary electrons."

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